Bombay High Court
Ram Yashwanta Koli vs The State Of Maharashtra And ... on 22 September, 2021
Bench: S.V. Gangapurwala, R. N. Laddha
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
966 Writ Petition No.6250 Of 2020
Ram Yashwanta Koli
Age : 52 years, Occu : Service,
R/o. Hadga, Tq. Nilanga, Dist. Latur .. Petitioner
Versus
1. The State of Maharashtra
General Administration Department
Mantralaya, Mumbai
Through its Principal Secretary
2. The Superintending Engineer @
Appointing Authority, Maharashtra State
Electricity Transmission Company Ltd
EHV O & M Circle, Old Power House,
Parali - Vaijnath, Tq. Parli, Dist. Beed.
3. The General Manager
(Human Resource - Establishment)
Maharashtra State Electricity Transmission
Company Ltd., Prakashganga, Plot No.C-19,
E-Block, 7th Floor, Bandra - Kurla Complex,
Bandra (East), Mumbai ... Respondents
...
Mr Vivek U. Jadhav, Advocate for the Petitioner
Mr S.G. Karlekar, AGP for the Respondent - State
Mr S.V. Adwant, Advocate for Respondent Nos.2 and 3
...
CORAM : S. V. GANGAPURWALA AND
R.N. LADDHA, JJ.
DATE : 22-09-2021
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ORAL JUDGMENT (Per S. V. GANGAPURWALA, J.) :
1. Rule. Rule made returnable forthwith. With the consent of the
parties, the matter is taken up for final hearing.
2. Heard the learned Counsel appearing for the respective parties.
3. The petitioner assails the clause 1(c) of Govt. Resolution dated
21-12-2019 and the order of the employer - respondent no.2 dated
18-02-2020 placing him on supernumerary post.
4. It is submitted by the learned Advocate for the petitioner that
the petitioner secured employment with respondent no.2 from
Scheduled Tribe category. His caste claim was invalidated. He
assailed the same before this Court by filing Writ Petition bearing
No.4444 of 2004. This Court under judgment and order dated
27-03-2006 disposed of the writ petition. The petitioner, during the
course of argument, did not agitate about invalidation of his caste
claim, but sought protection in service in terms of Govt. Resolution
dated 15-06-1995. According to the learned Counsel, once the
protection is granted in service and the said Judgment has become
final, now, the respondents cannot take a different stand. The
learned Counsel relies upon the judgment of this Court dated
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04-05-2021 in Writ Petition No.903 of 2020 with connected writ
petitions.
5. Mr Adwant, learned Advocate for Respondent Nos.2 and 3
submits that the petitioner's entry in service was from Scheduled
Tribe category. The petitioner failed to prove his caste claim. In view
of that, the petitioner is not entitled to claim the benefit of
reservation vis-a-vis Scheduled Tribe category. The learned Advocate
refers to the judgment of the Hon'ble Apex Court in the case of
Chairman And Managing Director, Food Corporation of India and
Others Vs. Jagdish Balaram Bahira & Others, reported in (2017) 8
SCC 670 and submits that the constitutional scheme of reservation
has been discussed by the Hon'ble Apex Court and those, who have
obtained employment from Scheduled Tribe category and failed to
prove their tribe claim, are not entitled to be protected and the
benefits given to them are required to be taken away. According
to the learned Advocate, the facts in Writ Petition No.903 of 2020
and other connected writ petitions decided by this Court
under Judgment and order dated 04-05-2021 can be
differentiated in as much as the tribe claims of the petitioners therein
were invalidated and confirmed by the High Court and
while upholding the judgment of the Committee, the protection
was granted to the services of the petitioners therein.
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In the present case, the petitioner gave up the claim of the Scheduled
Tribe category and as such, the petitioner cannot be said to be
similarly situated.
6. Mr Adwant, learned Advocate relies upon the judgment of the
Hon'ble Apex Court in the case of Inbasagaran v. S. Natarajan
reported in (2015) 11 SCC 12 to submit that each case depends upon
its own facts and a close similarity between one case and another is
not enough, because even a single significant detail may alter the
entire aspect. According to the learned Advocate, order of this Court
dated 27-03-2006 in Writ Petition No.4444 of 2004 is an order and
cannot be termed as a judgment.
7. Learned Advocate for Respondent Nos.2 and 3 also relies upon
the judgment of the Hon'ble Apex Court in the case of
R. Vishwanatha Pillai Vs. State of Kerala & Others reported in (2004)
2 SCC 105 to submit that a person procuring appointment in a post
meant for a reserved category candidate on the basis of a false caste
certificate is not a person holding a civil post and such appointment is
no appointment in the eyes of the law. The benefit cannot be given
to such a person.
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8. The learned Advocate for Respondent Nos.2 and 3 further
relies upon judgment of the Hon'ble Apex Court in the case of Bank of
India and Another Vs. Avinash D. Mandivikar and Others reported in
(2005) 7 SCC 690 to contend that if the certificate is fraudulently
obtained, such a person is not entitled for protection. It is further
observed by the Hon'ble Apex Court that when the clear finding of
the Scrutiny Committee is that he did not belong to a Scheduled
Tribe, the very foundation of his appointment collapses.
9. The factual matrix that the petitioner herein was appointed
from Scheduled Tribe category on or about 18-09-1989 does not
appear to be disputed. The petitioner's caste claim was referred to
the Scrutiny Committee. The Scrutiny Committee under judgment
and order dated 25-08-1997 invalidated the tribe claim of the
petitioner holding that the petitioner could not prove that he belongs
to Scheduled Tribe. The petitioner challenged the said judgment by
filing Writ Petition bearing No. 4444 of 2004 before this Court. In
the said matter, apart from the Scrutiny Committee, employer i.e.
present respondent nos.2 and 3 were also parties. The petitioner
herein sought protection in service. During the course of argument,
the petitioner did not seriously assailed the order of the Scrutiny
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Committee, however, sought protection in service in terms of the
Government Resolution.
10. The employer - respondents herein though were parties to the
said writ petition, did not resist the protection granted to the
petitioner herein in the judgment dated 27-03-2006 in Writ Petition
No.4444 of 2004. Para - 4 of the said judgment reads thus:
"4. In the instant case, the petitioner has been appointed
as Junior Operator in the Maharashtra State Electricity
Board on 18th September, 1989. The petitioner is therefore,
entitled to the protection of his services in view of the
Government Resolution dated 15.06.1995. It has already
been held by this Court in the judgment reported in 2006
(1) Mh.L.J. 308 that the persons belonging to Special
Backward Category are entitled the benefits of the
Government of the employees is made prior to the date
prescribed in the Government Resolution i.e. 15.06.1995.
In view of the reported judgment referred to hereinabove,
the petitioner is also entitled to the similar protection and
benefits as are provided by the Government Resolution
dated 15.06.1995."
11. The judgment of this Court, as referred to above, inter parties
has become final. The present respondents, who were parties to the
said judgment, did not assail the said judgment, accepted the said
judgment and allowed the petitioner to continue therein for all these
years.
12. Once the judgment inter parties has become final, unless the
said judgment is assailed the judgment inter parties would operate as
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a res judicata. The respondents herein had opportunity to resist the
claim of the petitioner seeking protection in service in Writ Petition
No.4444 of 2004. The respondents, however, did not resist the same
and accepted the judgment. The said judgment is acted upon.
Pursuant to the said judgment, the petitioner submitted the validity
of SBC certificate to the respondents. The respondents continued the
petitioner in service and, now, in view of the Government Resolution
dated 21-12-2019 has placed the petitioner on supernumerary post.
13. This Court in Writ Petition filed by the petitioners whose
invalidation of the caste claim was confirmed by the Court but had
granted protection in service had held that once the judgment inter
parties has become final, the same would operate as a res judicata
and the employer would not be entitled to contend otherwise. This
Court relied upon the judgment of the Hon'ble Apex Court in the case
of Kalinga Mining Corporation Vs. Union of India and Others,
reported in (2013) 5 SCC 252 and another Judgment of the Hon'ble
Apex Court in the case of Pradeep Kumar Maskara and Others Vs.
State of West Bengal and Others reported in (2015) 2 SCC 653.
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14. In the present matter also, before the judgment was delivered
by the Hon'ble Apex Court in the case of Chairman and Managing
Director, Food Corporation of India and Others (supra) the protection
in service is granted by this Court to the petitioner herein and the
same would be final.
15. In light of the above, Government Resolution dated 21-12-2019
would be read in a manner not to include the employees whose tribe
claims are invalidated, but granted protection in employment under
the judgment of this Court and the said judgment would attain
finality.
16. In light of the above, the impugned communication is quashed
and set aside. Rule is made absolute accordingly. No costs.
( R. N. LADDHA ) ( S. V. GANGAPURWALA )
JUDGE JUDGE
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